Your “Given all of this, I think a military tribunal is probably the best choice. (Though if I met the guy in a back alley, other options might come to mind.)”

I’ll take door number two.

http://www.longwarjournal.org/archives/2009/10/another_former_gitmo.php

After all, this guy graduated with honors from the Saudi “Play Nice Boys” School for Terrorist Rehabilitation.

Here are the links:

http://www.bloomberg.com/apps/news?pid=20601039&sid=aSf54LAfJyyQ

http://www.salon.com/news/opinion/glenn_greenwald/

They should work – if not, you can get them from the Bloomberg and salon.com homepages.

First: the competence of previous administrations is not the issue here, and is irrelevant to the competence of the present one, as I tried to pre-emptively point out in the post itself, in the vain hope of forestalling exactly the comparison you couldn’t help yourself from making anyway. Surely you know enough about logical argument to realize that even if every single one of America’s previous chief executives all the way back to George Washington was a gormless, blundering fool, that has no bearing on whether the current occupant of the office is or is not.

I agree with you that this is a very difficult problem, and I agree also that holding people indefinitely without trial is deeply offensive to our liberal sensibilities (as are, for example, the kitchen-knife beheadings that KSM personally oversaw, but I digress).

Your argument, however, is weakened by your falling back on the same assurance that the president just gave us, to wit: “don’t worry, he’ll be convicted.” This makes the trial, effectively, a sham, a transparent ploy. (And I am not as confident as you are that once KSM is granted the full panoply of rights and presumptions granted to defendants in U.S. courts — and considering also the difficulties the production of evidence may present in a case like this — that something mightn’t go horribly wrong.) Are we only going to try those folks that we can put on a good show with?

Given that we agree that KSM and his pals occupy an unmapped territory somewhere between uniformed combatants and common criminals, I would err on the side of caution here — in terms of security, legal precedent, etc. — even if by making an ostentatious display of our good nature we might instead burnish our image.

To repost an excerpt from this article:

A new variety of warfare has emerged in which treatment as a traditional POW doesn’t apply and criminal law doesn’t work. Criminal law creates liabilities the United States doesn’t want to incur, and it is not geared to deal with a terrorist like Mohammed. U.S. criminal law assumes that capture is in the hands of law enforcement officials. Rights are prescribed and demanded, including having lawyers present and so forth. Such protections are practically and theoretically absurd in this case: Mohammed is not a soldier and he is not a suspected criminal presumed innocent until proven guilty. Law enforcement is not a practical counter to al Qaeda in Afghanistan and Pakistan. A nation cannot move from the rules of counterterrorism to an American courtroom; they are incompatible modes of operation. Nor can a nation use the code of criminal procedures against a terrorist organization operating transnationally. Instead, they must be stopped before they commit their action, and issuing search warrants and allowing attorneys present at questioning is not an option.

Given all of this, I think a military tribunal is probably the best choice. (Though if I met the guy in a back alley, other options might come to mind.) Above all, I want to be very, very sure this man never gets loose.

Apologies.

We have these choices: continue to let KSM rot in jail without trial, execute him without trial, try him in a military court, or try him in a civilian court. I believe the first two choices are non-starters, for obvious reasons. Cogent arguments regarding why a civilian court is better than a military court can be found at http://www.bloomberg.com/apps/news?pid=20601039&sid=aSf54LAfJyyQ. I agree with the author and hence believe that the Obama administration is doing the right thing.

I don’t think Holder would try KSM in a federal court if he thought he would lose the case. I think the likelihood of KSM getting off on a “legal nicety” is about as great as seeing me in the Master’s Tournament next April. You could perhaps have a rogue juror who causes a mistrial or hung jury, leading to a retrial. If a black swan event occurred and KSM was acquitted, he could be indicted the next day for the plane which crashed in Pennsylvania. I wouldn’t expect a death penalty, as I doubt a judge would give grant him his wish of martyrdom. I would bet substantial odds that he faces the rest of his life in the Big House and dies there.

It is important not only that justice be carried out in a fair way, but that it be seen to be carried out in a fair way. Partly this is because we right-thinking Americans have certain core values which are immutable over time, regardless of the nature of the threat or how it may be different than previous threats. To use an over-used cliché, if we abandon our core values, then the terrorists have won. However, there is a pragmatic element which may be equally important. If we are perceived throughout the world as being faithful to core American values, we will have gone very far towards winning the so-called war on terror. While I’m not sure if you can get through a Glenn Greenwald column without gagging, his essay today at http://www.salon.com/news/opinion/glenn_greenwald/ has quotes from Muslim terrorists and ex-terrorists which are illuminating (they’re towards the bottom, if you’re disinclined to read his eminently sensible disembowelment of the Weekly Standard). Whatever you may think of Obama – and the quick answer to your “grave concern about the judgment and general competence of this administration” is to ask which administration, besides Clinton’s, in your lifetime, has had better judgment or competence – the fact that the American electorate elected a black man named Barack Hussein Obama to be President has probably done more to change hearts and minds throughout the world than anything else we have done in a very long time. (Not that I am suggesting that he should have been elected because it pleases foreigners. He should have been elected because of his all-around awesomeness. But I digress.) I think that Obama and Holder faced a very difficult issue here and handled it in exactly the right way.

http://fl1.findlaw.com/news.findlaw.com/wsj/docs/terrorism/usksmetal20808chrgs.pdf

Jihadist terrorists — who certainly see themselves as soldiers engaging in holy war, in which the House of Islam struggles against the House of War — are, I agree, not uniformed combatants fighting for a national army, but neither are they simply run-of-the-mill criminals. In this asymmetrical conflict they are captured not by law-enforcement officers, but by our own soldiers.

Our soldiers are not policemen; the training and purpose of the army and domestic law-enforcement agencies are utterly different. Under such circumstances the procedures and expectations of domestic criminal proceedings, the technicalities and loopholes of prosecution and defense, as well as the the acquisition and production of evidence, are a very poor fit. To see KSM acquitted on some nicety along these lines would be a disaster — and if we are to be assured that this won’t happen, well then this is nothing but a show trial, a kangaroo court — an impression President Obama recently reinforced by reassuring those who doubt the wisdom of this move that they won’t feel that way once KSM has been found guilty and executed.

As this article argues, we need to think hard about how our legal system must evolve to reflect these new realities. But just shoehorning them into the existing criminal-courts system is a bad idea, no matter what public-relations points it may score.

Those who use the metaphor of war do so selectively, when it suits their purposes. For example, we did not torture Nazi prisoners (or, more precisely, in the rare instances when they were tortured by American soldiers, the soldiers were disciplined). While the Nazis were far more dangerous, and caused infinitely greater damage, than Al Qaeda, we treated their prisoners according to the rules of war. However, those who choose to portray the struggle against Al Qaeda as a war do not then treat their detainees as warriors. Have cake, eat it too.

KSM has far more in common with Timothy McVeigh than, say, Rommel. Both McVeigh and KSM caused the deaths of innocents to make a twisted political point. The differences between the two are far less important than this essential similarity. The crimes are the same, although the motives and circumstances differ. Hence they ought to be tried in the same venue with the same set of rules and procedures.

However, this is a distraction from the real issue. In your opinion, should KSM get a fair trial? If so, then what venue would be preferable to Federal courts? If not, why not?

For example, if Bernie Madoff had planned his Ponzi scheme from Bermuda, but it ensnared American citizens using American bank accounts, he could have been extradited and brought to justice in American courts.

Nor does the crime have to take place on American soil. Richard Reid (the shoe bomber) was brought to trial for bringing explosives on an airplane, even though the act took place far outside American borders. The fact that a crime is planned or executed outside American territory does not preclude indictment and trial in American courts.

In my view, KSM committed a crime on American soil, and should be tried in New York, where the crime was committed. Trying him in a military court has its own problems (among them is the fact that military courts are part of the executive branch, and he ought to be tried by the judicial branch), but it carries with it unfortunate symbolism, as it elevates him to the status of a warrior. He ought to be tried as the mass murderer that he is, just as Timothy McVeigh, Jeffrey Dahmer, the Washington snipers, the first set of WTC bombers, and others were. There is no better symbolism than exhibiting confidence that our legal system, with principles of fairness which are universally applied. It shows strength, rather than cowering in the face of terrorists, as many are now advocating.

The entire issue boils down to whether you believe that KSM deserves a fair trial. If you do, then the question is whether there is another venue which would be more appropriate than Federal Court in Manhattan. If you don’t, then you are obligated to explain why we ought to abandon what has been a core American value since the Declaration of Independence: no matter how heinous the crime, the state does not have the right to incarcerate or execute an individual without a fair trial.